601EStreet,NW T 202-434-2277
Washington,DC20049 1-888-0UR-AARP
1-888-687-2277
TTY 1-877-434-7598
www.aarp.org
May 29,2008
Stephen Llewellyn, Executive Officer
Executive Secretariat
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507
Re:
Notice of Proposed Rulemaking on Disparate Impact Under the Age
Discrimination in Employment Act
Dear Mr. Llewellyn:
These comments are submitted on behalf of AARP. AARP is a nonpartisan,
nonprofit membership organization of people age 50 or older dedicated to addressing the
needs and interests of older Americans. AARP supports the rights of older workers and
strives to preserve the legal means to enforce them. Approximately one half of AARP's
nearly40 millionmembersarein theworkforce,mostof whomareprotectedby theAge
Discrimination in Employment Act (ADEA), 29 U.S.c. §§ 621-634, Title VII, and other
employment laws. Vigorous enforcement of these and other work place civil rights laws
is of paramount importance to AARP, its working members, and the millions of other
workers of all ages who rely on them to deter and remedy illegal employment
discrimination.
AARP supports the EEOC's use of its legislative rulemaking authority under
section 9 of the ADEA, 29 U.S.C. § 628, to amend its regulations to reflect the holding in
Smithv. CityofJackson,Mississippi,544U.S.228 (2005)andtofurtherclarifythe
standards for disparate impact claims under the ADEA. AARP believes that the proposed
regulations generally establish fair, workable and clear guidelines for employers and
employees and should be adopted in final form.
1.
Proposed Revision to Current Paral!raph 1625.7(d)
The Commission proposes to revise the current paragraph 1625.7(d) to state that
"an employment practice that has an adverse impact on individuals within the protected
age group on the basis of older age is discriminatory unless the practice is justified by a
'reasonable factor other than age' (RFOA)." The Commission correctly explains that this
revisioncomportswiththe SupremeCourt'sholdingin Smithv. CityofJackson,
Mississippi, in which the Court stated: "It is. . . in cases involving disparate-impact
claimsthat theRFOAprovisionplaysits principalroleby precludingliabilityif the
Jennie Chin Hansen, President
HEALTH/FINANCES/CONNECTING/GIVING/ENJOYING WilliamD.Novelli,ChiefExecutiveOfficer
adverse impact was attributable to a nonage factor that was 'reasonable. '" 544 U.S. 228,
240 (2005).
The Commission's proposed revision also complies with Congress' directives as
expressed by the ADEA. The ADEA generally prohibits discrimination through facially
neutral practices that adversely impact older workers, with the RFOA provision
determining whether such discrimination is arbitrary or may be excused. The prefatory
language of the RFOA provision "to take any action otherwise prohibited" designates the
RFOA provision as a defensive response to a violation of the statute's prohibitions. The
"factor other than" criterion of the defense indicates that the violation involves a non-age
factor that causes discrimination because of age, i.e., a disparate impact claim.
2. Proposed Revision to Current Para2raph 1625.7(e)
AARP agrees with the Commission's longstanding position that the RFOA
provision creates an affirmative defense for which the employer bears the burden of
proof. Therefore, AARP strongly supports the Commission's proposed revision to
current paragraph 1625.7(e) to state that, "when the RFOA exception is raised, the
employer has the burden of showing that a reasonable factor other than age exists
factually."
As the Commission correctly recognizes, the statutory language, as well as the
placement ofthe RFOA provision with the other affirmative defenses in ADEA section
4(t)(1), 29 U.S.C. § 623(t)(1), strongly support the conclusion that the RFOA provision is
also an affirmative defense. The prefatory language of the RFOA provision -"to take
anyactionotherwiseprohibited"-demonstratesCongress'intentthattheRFOA
provision be an affirmative defense to a violation of the statute's prohibitions. In
addition, the placement ofthe RFOA provision contiguous to the ADEA's other
affirmative defenses! provides further strong support for the conclusion that the RFOA
provision creates an affirmative defense.
Finally, requiring plaintiffs who have already "isolate[ed] and identifIied] the
specific employment practice [ ]" that had a disproportionately adverse impact on older
workers, Smith, 544 U.S. at 241, to carry the additional burden of proving the absence of
reasonable factors other than age would be extremely detrimental to age discrimination
victims, since employers could easily articulate "other factors" without being obligated to
prove them. As a result, bringing a disparate impact claim would become an exercise in
Congress placed the RFOA provision between the ADEA's bona fide occupational
qualification (BFOQ) provision and the foreign workplace defense. Both of these
provisions are undisputedly affirmative defenses. See WesternAir Lines, Inc. v. Criswell,
472 U.S. 400, 416 n.24 (1985) (describing the employer's burden in establishing the
BFOQ defense) and Mahoney v. Radio Free Europe/Radio Liberty, Inc., 818 F. Supp. 1,
4 (D.D.C. 1992), rev'd on other grounds, 47 F. 3d 447 (D.C. Cir. 1995) (construing
foreign employee provision as an affirmative defense).
2
futility, as it has proven to be in the years since the Smith decision, with the vast majority
of courts placing the burden of proof on the plaintiffs.2
3.
The Commission Should Provide Further Re2ulatorv Guidance
Re2ardin2 the Meanin2 of "Reasonable Factor other than A2e."
AARP urges the Commission to issue regulations which provide more guidance
and information on the meaning of "reasonable factors other than age." The Supreme
Court did not provide an explicit definition of "reasonable" in Smith v. City of Jackson,
Mississippi, 544 U.S. 228 (2005). The term "reasonable," however, must be given effece
and should not be a superficial standard readily satisfied by any explanation proffered by
an employer. In Smith, the Supreme Court compared the ADEA's "reasonable factors
other than age" provision with the Equal Pay Act (EPA) provision that precludes liability
"ifapaydifferentialwasbased'onanyotherfactor' -reasonableorunreasonable," 544
U.S. at 239. The Court concluded, "The fact that Congress provided that employers
could use only reasonable factors in defending a suit under the ADEA is therefore
instructive." Id. (emphasis in original). In other words, while "the scope of disparate-
impact liability under the ADEA is narrower than under Title VII," id. at 240, Congress
did not intend for the "reasonable factor other than age" provision to grant employers a
free pass to justify conduct that adversely impacts older workers. See Watson v. Fort
WorthBank & Trust, 487 U.S. 977, 1011 (J. Blackmun, concurring) ("Allowing an
employer to escape liability simply by articulating vague, inoffensive-sounding
subjective criteria would disserve [the ADEA's] goal of eradicating discrimination in
employment. . .Such a rule would encourage employers to abandon attempts to construct
selection mechanisms subject to neutral application for the shelter of vague generalities.")
(footnote omitted).
AARP urges the Commission to propose regulations that state that the
"reasonable" qualifier of the RFOA defense requires employers to prove that the neutral
employment practice is not in any way related to age, but instead is job or performance-
related. A requirement that a "reasonable factor other than age" may not be related to age
complies with the Court's directive in Smith that liability under the ADEA is precluded
"if the adverse impact was attributable to a nonage factor. . . ." 544 U.S. at 239
(emphasis added). For example, a requirement that employees must pass a physical
examination after reaching a certain age to continue in employment should not escape
liability under the ADEA as a "reasonable factor other than age" because that factor is
based directly on age. EEOC v. Massachusetts, 987 F.2d 64, 73 (1st Cir. 1993). See also
EEOCv.Johnson&Higgins,Inc., 91F.3d 1529,1541(2d Cir. 1996)("Theplain
language of § 623(f)(1) makes it clear that an employer has a defense ifhis policy is
based on reasonable factors 'other than age,' not ifthe policy is reasonably based on
2 See, e.g., Pippin v. Burlington Resources Oil and Gas Co., 440 F.3d 1186, 1200 (10th
Cir. 2006); Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134, 139 (2d Cir.
2006).
3
See United States v. Menasche, 348 U.S. 528, 539-40 (1955) (describing a court's duty
to give effect to every clause and word of a statute).
3
age."). Nor should a factor that includes an age component qualify as a "reasonable
factor other than age." In EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641,648
(9th Cir. 1992), the Ninth Circuit correctly rejected c;l"reasonable factor other than age"
defense to a union hiring policy that required retirees to stop receiving pension benefits,
where receipt of such benefits was conditioned on age. Indeed, pension eligibility should
not qualify as a "reasonable factor other than age" because it almost always includes age
as an element of eligibility. See, e.g., EEOC v. City of Altoona, 723 F.2d 4, 6 (3d Cir.
1983).
Second, the language of ADEA section 4(f)(1), 29 U.S.C. § 623(f)(1), requires
that the "factors other than age" must be "reasonable." While neither the statute nor its
legislative history provides a definition of the term "reasonable," the context of the
RFOA provision suggests that the term "reasonable" imposes a requirement that the
factor be related to an individual's ability to do the job. See Smith, 544 U.S. at 240
("Congress' decision to limit the coverage of the ADEA by including the RFOA
provision is consistent with the fact that age. . . not uncommonly has relevance to an
individual's capacity to engage in certain types of employment.") (emphasis added).
The Commission's current regulation that affirms the longstanding Department of
Labor (DOL) regulations interpreting the RFOA provision, 29 C.F.R. § 1625.7(d) (2004),
§ 860.103(f)(I)(i) (1970), clearly and correctly sets forth ajob-related standard for
determining whether factors other than age upon which an employer acted were
reasonable. Reflecting the findings ofthe Wirtz Report,4which documented how
employers had commonly and unjustifiably used fitness requirements to restrict the hiring
of older workers, the current regulation interprets the RFOA defense to permit fitness
requirements only if "such standards are reasonably necessary for the specific work to be
performed and are uniformly and equally applied to all applicants for the particular job
category, regardless of age." 29 e.F.R. § 860.103(f)(I)(i) (1970). The defense would
not, however, justify "an employer's assumption that every employee over a certain age
in a particular type of job usually becomes physically unable to perform. . . ." Both the
Wirtz Report and the DOL regulations support the notion that physical fitness standards
are not a "reasonable factor other than age" unless such standards are related to the
employee's ability to perform the job.
Construing "reasonable factor" to mean "job-related" is also recommended by the
relationship between the ADEA's RFOA provision and the companion "bona fide
occupational qualification" (BFOQ) defense. Immediately preceding the "reasonable
factors other than age" language, Congress used the term "reasonably necessary" to
describe the relationship between a "bona fide occupational qualification" and the
"normal operation of the particular business." 29 U.Se. § 623(f)(1). The BFOQ defense
focuses on the employee's ability to perform ajob. UAWv. Johnson Controls, Inc., 499
U.S. Dept' of Labor, The Older American Worker: Age Discrimination in
Employment, Report of the Secretary of Labor to the Congress Under Section 715 of the
Civil Rights Act of 1964 (1965). .
4
U.S. 187,201 (1991). Congress' use ofthe almost identical term in the next sentence
following the BFOQ defense demonstrates that it intended the term "reasonable factors"
to mean factors related to the job requirements or job performance.
The absence ofthe term "necessary" from the RFOA language in § 623(f)(1)
should be interpreted by the Commission to imply that although the employer is not
compelled to use the factors it chose,s the employer's justification should be more than
mere rationality, but less than absolute necessity. Accordingly, AARP urges the
Commission to adopt the position it took as amicus curiae in Meacham v. Knolls Atomic
Power Laboratory, that the holding in Smith "did not mean that the existence of other
alternatives is irrelevant." Instead, "to the extent that a plaintiff could show that there are
other equally effective ways, at comparable cost, of achieving the employer's stated goals
with less disparate impact on older employees, that [sh]ould bear on the reasonableness
of the employer's choice."
Even the standard for the employer's response to a disparate impact claim set
forth in Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), imposed a burden on
the employer that was greater than merely articulating a legitimate, business reason.
Under Wards Cove, the employer must show that "a challenged practice serves, in a
significant way, the legitimate employment goals ofthe employer." Id. at 659. As the
Supreme Court explained in Wards Cove:
The touchstone ofthis inquiry is a reasoned view ofthe employer's
justification for his use of the challenged practice. A mere insubstantial
justification in this regard will not suffice, because such a low standard of
review would permit discrimination to be practiced through the use of
spurious, seemingly neutral employment practices. At the same time,
though, there is no requirement that the challenged practice be "essential"
or "indispensable" to the employer's business for it to pass muster: this
degree of scrutiny would be almost impossible for most employers to meet
!d.
Requiring employers to justify a practice as job-related insures that the criteria
relate to the individual's ability to do the job. A showing that a practice is a "reasonable
factor other than age" must include a demonstration that the criteria are not arbitrary, but
instead are fair and reasonable. Proofby the employer of a substantial business purpose
for using the factor could establish that the decision was "fair, proper, just, moderate, [or]
suitable under the circumstances." BLACKS'LAWDICTIONARY,
at 1138. On the other
5 This would comport with Smith's directive that, "[u]nlike the business necessity test,
which asks whether there are other ways for the employer to achieve its goals that do not
result in a disparate impact on a protected class, the reasonableness inquiry includes no
such requirement," 544 U.S. at 243.
5
hand, if older workers can show that a neutral practice disproportionately disadvantages
them, the practice should be scrutinized under the objective standard of job-relatedness.
4. Conclusion
AARP strongly supports the EEOC's proposed regulations concerning disparate
impact claims under the ADEA and the Commission's intent to supplement those
regulations with additional guidance as to what factors are relevant in determining
whether or not a "factor other than age" is "reasonable." Accordingly, AARP urges the
Commission to proceed expeditiously to analyze the comments received and to issue final
regulations consistent with the purposes ofthe ADEA.
If you have further questions or need additional information, please feel ftee to contact
Daniel Kohrman of the AARP Foundation at 202-434-2064.
Respectfully submitted,
David Certner
Legislative Counsel and Legislative Policy Director
Government Relations and Advocacy
6